Ashutosh v. State of M.P

Summon the lower court record. List for hearing in due course. Ref: Order on the Application for Suspension of Sentence Heard Mr. Vijay Bahadur Shivhare, the learned counsel for applicant/appellant and the learned A.G.A. for State/opposite party-1. Perused the record. Feeling aggrieved by the judgement and order dated 05.02.2025, passed by Special Judge, POCSO Act, Hamirpur, in Special Case No.700045 of 2016, (State v. Vivek Singh), under sections 354B, 323, 504, 506 IPC & Section 8 POCSO Act, arising out of Case Crime No.2395 of 2013, Police Station- Kotwali Nagar, District- Hamirpur, applicant/appellant has approached this Court by means of aforementioned criminal appeal. By means of the impugned judgment and order applicant-appellant has been convicted under section 354B IPC and consequently, sentenced to four years rigorous imprisonment along with fine of Rs. 5,000/- and in case of default, applicant/appellant is to undergo three months additional imprisonment under section 323 IPC and consequently, sentenced to six months rigorous imprisonment along with fine of Rs. 1,000/- and in case of default in payment of fine, applicant/appellant is to undergo one month additional imprisonment, under section 504 IPC and consequently, sentenced to one year rigorous imprisonment along with fine of Rs. 2,000/- and in case of default in payment of fine, applicant/appellant is to undergo one month additional imprisonment, under section 506 IPC and consequently, sentenced to two years rigorous imprisonment along with fine of Rs. 3,000/- and in case of default in payment of fine, applicant/appellant is to undergo two months additional imprisonment. The impugned judgement and order further records that all the sentences shall run concurrently. Applicant/appellant was on bail during the pendency of trial but was taken into custody in compliance of the judgment and order dated 15.02.2025. Accordingly, applicant/appellant has filed aforesaid application for suspension of sentence seeking his enlargement on bail during the pendency of present appeal. Learned counsel for applicant/appellant contends that even though the applicant/appellant is a convicted accused, yet he is liable to be enlarged on bail during the pendency of present appeal. Referring to the judgement of Supreme Court in Atul @ Ashutosh Vs. State of M.P., (2024) 3 SCC 663 it is urged by the learned counsel for applicant/appellant that Apex Court in aforementioned judgment has itself observed that where definite sentence, punishment has been awarded by Court below against accused appellant and there are no chances of the appeal being heard in near future, the High Court must enlarge such an accused on bail. According to the learned counsel for applicant/appellant, in view of heavy pendency of appeals before this Court, coupled with the fact that there is an acute shortage of Judges in High Court, there is no likelihood of the present appeal being heard in near future. Even otherwise, applicant/appellant is a man of clean antecedents inasmuch he has no criminal history to his credit except the present one. Applicant-appellant is in jail since 15.02.2025. Learned counsel for applicant-appellant has then referred to the impugned judgment and on basis thereof he contends that conclusion drawn by court below is against the weight of evidence on record. He, therefore, contends that prima facie the present appeal is liable to be allowed. It is thus urged by the learned counsel for applicant/appellant that applicant/appellant is liable to be enlarged on bail during the pendency of present criminal appeal. In case the applicant/appellant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal. Per contra, the learned A.G.A. representing State/opposite party-1 has opposed the prayer for bail. He submits that since applicant/appellant is a named as well as convicted accused, therefore he does not deserve any indulgence by this Court. According to the learned A.G.A. interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date instead of enlarging the applicant/appellant on bail. Since applicant-appellant is guilty of committing a crime which is not only illegal but also immoral, applicant/appellant is guilty of dislodging the modesty of a young girl (prosecutrix). As such, no equity exists in favour of applicant/appellant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant/appellant in support of the prayer for bail, with reference to the record at this stage. Having heard the learned counsel for applicant/appellant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant/appellant, accusation made coupled with the fact that though applicant/appellant is a convicted accused but he has been awarded definite punishment by court below which is 4 years. The Apex Court in the case of Atul @ Ashutosh (Supra) has observed that where an accused applicant has been awarded definite sentence of punishment and there are no chances of the appeal being heard in near future, then in such a circumstance the accused-applicant should be enlarged on bail during the pendency of appeal. No exception can be carved out in the case of present applicant/appellant. In view of the heavy pendency of appeals before this Court coupled with an acute shortage of Hon'ble Judges, there is no likelihood of the present appeal being heard in near future. Considering the period of incarceration undergone, the clean antecedents of applicant/appellant and also the fact that applicant-appellant was on bail during the pendency of trail and there being nothing on record to show that applicant-appellant misused the liberty of bail during the pendency of trial, therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail but without making any comment on the merits of the case, applicant/appellant have made out a case for bail. Accordingly, the application for suspension of sentence is liable to be allowed. It is, accordingly, allowed. Let the applicant/appellant- Vivek Singh be released on bail in aforesaid case crime number on the furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned. It is, however, provided that the amount of fine awarded against applicant/appellant by Court below shall be deposited by applicant/appellant with the court below, within a period of one month from today, failing which the bail granted to applicant/appellant under this order shall stand cancelled and he shall be taken into custody at once to serve out the sentence, awarded by court below. Order Date :- 5.3.2025/S.A.

Summon the lower court record. List for hearing in due course. Ref: Order on the Application for Suspension of Sentence Heard Mr. Vijay Bahadur Shivhare, the learned counsel for applicant/appellant and the learned A.G.A. for State/opposite party-1. Perused the record. Feeling aggrieved by the judgement and order dated 05.02.2025, passed by Special Judge, POCSO Act, Hamirpur, in Special Case No.700045 of 2016, (State v. Vivek Singh), under sections 354B, 323, 504, 506 IPC & Section 8 POCSO Act, arising out of Case Crime No.2395 of 2013, Police Station- Kotwali Nagar, District- Hamirpur, applicant/appellant has approached this Court by means of aforementioned criminal appeal. By means of the impugned judgment and order applicant-appellant has been convicted under section 354B IPC and consequently, sentenced to four years rigorous imprisonment along with fine of Rs. 5,000/- and in case of default, applicant/appellant is to undergo three months additional imprisonment under section 323 IPC and consequently, sentenced to six months rigorous imprisonment along with fine of Rs. 1,000/- and in case of default in payment of fine, applicant/appellant is to undergo one month additional imprisonment, under section 504 IPC and consequently, sentenced to one year rigorous imprisonment along with fine of Rs. 2,000/- and in case of default in payment of fine, applicant/appellant is to undergo one month additional imprisonment, under section 506 IPC and consequently, sentenced to two years rigorous imprisonment along with fine of Rs. 3,000/- and in case of default in payment of fine, applicant/appellant is to undergo two months additional imprisonment. The impugned judgement and order further records that all the sentences shall run concurrently. Applicant/appellant was on bail during the pendency of trial but was taken into custody in compliance of the judgment and order dated 15.02.2025. Accordingly, applicant/appellant has filed aforesaid application for suspension of sentence seeking his enlargement on bail during the pendency of present appeal. Learned counsel for applicant/appellant contends that even though the applicant/appellant is a convicted accused, yet he is liable to be enlarged on bail during the pendency of present appeal. Referring to the judgement of Supreme Court in Atul @ Ashutosh Vs. State of M.P., (2024) 3 SCC 663 it is urged by the learned counsel for applicant/appellant that Apex Court in aforementioned judgment has itself observed that where definite sentence, punishment has been awarded by Court below against accused appellant and there are no chances of the appeal being heard in near future, the High Court must enlarge such an accused on bail. According to the learned counsel for applicant/appellant, in view of heavy pendency of appeals before this Court, coupled with the fact that there is an acute shortage of Judges in High Court, there is no likelihood of the present appeal being heard in near future. Even otherwise, applicant/appellant is a man of clean antecedents inasmuch he has no criminal history to his credit except the present one. Applicant-appellant is in jail since 15.02.2025. Learned counsel for applicant-appellant has then referred to the impugned judgment and on basis thereof he contends that conclusion drawn by court below is against the weight of evidence on record. He, therefore, contends that prima facie the present appeal is liable to be allowed. It is thus urged by the learned counsel for applicant/appellant that applicant/appellant is liable to be enlarged on bail during the pendency of present criminal appeal. In case the applicant/appellant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal. Per contra, the learned A.G.A. representing State/opposite party-1 has opposed the prayer for bail. He submits that since applicant/appellant is a named as well as convicted accused, therefore he does not deserve any indulgence by this Court. According to the learned A.G.A. interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date instead of enlarging the applicant/appellant on bail. Since applicant-appellant is guilty of committing a crime which is not only illegal but also immoral, applicant/appellant is guilty of dislodging the modesty of a young girl (prosecutrix). As such, no equity exists in favour of applicant/appellant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant/appellant in support of the prayer for bail, with reference to the record at this stage. Having heard the learned counsel for applicant/appellant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant/appellant, accusation made coupled with the fact that though applicant/appellant is a convicted accused but he has been awarded definite punishment by court below which is 4 years. The Apex Court in the case of Atul @ Ashutosh (Supra) has observed that where an accused applicant has been awarded definite sentence of punishment and there are no chances of the appeal being heard in near future, then in such a circumstance the accused-applicant should be enlarged on bail during the pendency of appeal. No exception can be carved out in the case of present applicant/appellant. In view of the heavy pendency of appeals before this Court coupled with an acute shortage of Hon'ble Judges, there is no likelihood of the present appeal being heard in near future. Considering the period of incarceration undergone, the clean antecedents of applicant/appellant and also the fact that applicant-appellant was on bail during the pendency of trail and there being nothing on record to show that applicant-appellant misused the liberty of bail during the pendency of trial, therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail but without making any comment on the merits of the case, applicant/appellant have made out a case for bail. Accordingly, the application for suspension of sentence is liable to be allowed. It is, accordingly, allowed. Let the applicant/appellant- Vivek Singh be released on bail in aforesaid case crime number on the furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned. It is, however, provided that the amount of fine awarded against applicant/appellant by Court below shall be deposited by applicant/appellant with the court below, within a period of one month from today, failing which the bail granted to applicant/appellant under this order shall stand cancelled and he shall be taken into custody at once to serve out the sentence, awarded by court below. Order Date :- 5.3.2025/S.A.